Thursday, August 6, 2015
I was browsing this week's copy of Law Week Colorado and stumbled across an article from The Pew Charitable Trust's blog Stateline, "As Rent Skyrockets, More Cities Look to Cap It." Rent control is returning to the national conversation as home ownership declines while rents increase in the most desirable parts of the country - including Colorado. However, Colorado, like several other states, has a state law prohibiting local governments from implementing rent control. So is rent control really a viable policy option, or is it a distraction from other policy solutions? What do Land Use Prof Blog readers think?
Jamie Baker Roskie
Tuesday, August 4, 2015
A wilderness bill that has been more than 40 years in the making was approved by the U.S. Senate Tuesday protecting 275,665 acres of the Boulder-White Clouds mountains in Idaho just east of the Sun Valley area. The bill now heads to President Obama for signature having already been approved by the House. The Idaho Statesman has the story here.
Monday, August 3, 2015
I was shocked and saddened this morning to hear of the passing of Seton Hall law prof Marc Poirier. I primarily knew Marc through the law and mindfulness movement, but he was a tremendous teacher and scholar in the environmental and law and sexuality realms. He specialized in property theory and natural resource management, and I'm guessing many readers of this blog are familiar with his work. His Seton Hall bio lists some of his many accomplishments in environmental law:
In the environmental area, Professor Poirier was recently co-counsel on an amicus brief to the New Jersey Supreme Court on behalf of conservation interests, supporting a state law that protects hundreds of thousands of acres of pristine watershed land from urban sprawl. He has written about and advised environmental advocacy groups on the public trust doctrine and the scope of permissible regulatory takings. A recent article in the area of coastal land management argued that place-based public art has a unique role to play in the communication of the risk of sea level rise due to global warming. For several years Professor Poirier taught a survey course in environmental law to the U.S. Army Corps of Engineers.
But more than anything I knew him as a funny, decent, smart and very endearing human being. He will be sorely missed.
Jamie Baker Roskie
Saturday, August 1, 2015
Here is the round-up of land use law-related articles posted to SSRN's Property, Land Use & Real Estate Law eJournal in July. I took several new approaches this month in my ever-evolving effort to "get it right."
First, I have separated out U.S. scholars from international scholars. I did this because it seemed to me that it made for easier scanning of articles; however, I am open to whether others find this an unnecessary division. On the other hand, perhaps as more international law schools join SSRN, there is room for more division, perhaps by world regions?
Second, there are an increasing number of articles being posted to SSRN that were written several years--sometimes several decades--in the past. It doesn't seem to me that those articles are in the spirit of this post, which is to detail what is new in scholarship, so I have edited out those articles from long ago that are just now making their way to SSRN.
Third, I edited out those articles from the eJournal that did not seem to be land use-law related.
Finally, if I have missed your article and you want to share it with the readership here, do not be shy about letting me know, and I will be happy to post an abstract.
Land use law articles posted to SSRN in July by U.S. scholars
Reserved Water Rights as a Rule of Law
Idaho Law Review, 2015
Michael C. Blumm
Lewis & Clark Law School
Reconceiving Military Base Redevelopment: Land Use on Mothballed U.S. Bases
Urban Affairs Review, pp. 1-30, 2015,
Amanda Johnson Ashley and Michael Touchton
Boise State University and Boise State University
The Impact of the Home Valuation Code of Conduct on Appraisal and Mortgage Outcomes
FRB of Philadelphia Working Paper No. 15-28
Lei Ding and Leonard I. Nakamura
Federal Reserve Bank of Philadelphia and Federal Reserve Bank of Philadelphia
Written Testimony for 'The Future of Hydraulic Fracturing on Federally Managed Lands'
To be published in the Congressional Record; testimony before the Subcommittee on Energy and Mineral Resources -- subcommittee of the U.S. House of Representatives Committee on Natural Resources, 2015 Forthcoming
Hannah Jacobs Wiseman
Florida State University - College of Law
What Can Corporations Teach Governments About Democratic Equality?
31 Social Philosophy & Policy 230 (2015), Chapman University, Fowler Law Research Paper No. 15-08
Tom W. Bell
Chapman University, The Dale E. Fowler School of Law
Place, Meaning, and the Visual Argument of the Roadside Cross
Savannah Law Review, Forthcoming
Florida Coastal School of Law
Setting the Stage for Ferguson: Housing Discrimination and Segregation in St. Louis
Missouri Law Review, Forthcoming, University of Missouri School of Law Legal Studies Research Paper No. 2015-13
Rigel Christine Oliveri
University of Missouri School of Law
Dealing with Ocean Acidification: The Problem, the Clean Water Act, and State and Regional Approaches
Washington Law Review, 2016 Forthcoming
Robin Kundis Craig
University of Utah S.J. Quinney College of Law
Art and the History of Environmental Law
Critical Analysis of Law (2015, Forthcoming)
Tel Aviv University - Buchmann Faculty of Law
Of Property and Information
Columbia Law Review, Forthcoming, U of Penn, Inst for Law & Econ Research Paper No. 15-29
Abraham Bell and Gideon Parchomovsky
Bar Ilan University - Faculty of Law and University of Pennsylvania Law School
Using Historic Preservation Laws to Halt the Destruction of 'Porch Culture' in the Lower Ninth Ward of New Orleans
University of Missouri at Kansas City - School of Law
Legal Adaptive Capacity: How Program Goals and Processes Shape Federal Land Adaptation to Climate Change
University of Colorado Law Review, Vol. 87, 2016, Forthcoming, UC Irvine School of Law Research Paper No. 2015-68, GWU Law School Public Law Research Paper No. 2015-25, GWU Legal Studies Research Paper No. 2015-25
Alejandro E. Camacho and Robert L. Glicksman
University of California Irvine School of Law and George Washington University - Law School
Montanans Must Seek Independence from CSKT Water Compact in Spirit of 1776
Canada Free Press, July 2, 2015, Clark Fork Valley Press/Mineral Independent, July 10, 2015
Lawrence A. Kogan
Institute for Trade, Standards and Sustainable Development (ITSSD)
Precipice Regulations and Perverse Incentives: Comparing Historic Preservation Designation and Endangered Species Listing
Georgetown International Environmental Law Review (GIELR), Vol. 27, pp. 343-392, 2015
J. Peter Byrne
Georgetown University - Law Center
Tax Structuring of Foreign Investment in U.S. Real Estate with a N.Y. Twist
53 Tax Management Memorandum 43 (2012)
Alan I. Appel and Jack Mandel
New York Law School and Bryan Cave LLP
Structuring Investments by Foreign Persons in U.S. Real Estate
Journal of Taxation and Regulation of Financial Institutions, Vol. 25, No. 55, 2012
Alan I. Appel
New York Law School
Carbon Credits As EU Like It: Property, Immunity, TragiCO2medy?
Journal of Environmental Law, pp.1-29, 2015 ( doi: 10.1093/jel/eqv020, 2015.), Singapore Management University School of Law Research Paper No. 52/2015, University of Hong Kong Faculty of Law Research Paper No. 2015/022
Kelvin Low and Jolene Lin
Singapore Management University - School of Law and University of Hong Kong - Faculty of Law
The Political Economy of Local Vetoes
Texas Law Review, Vol. 93, 2014, KBH Energy Center Research Paper No. 2015-08
David B. Spence
University of Texas at Austin - Department of Business, Government and Society
Cultural Heritage Conservation Easements: The Problem of Using Property Law Tools for Heritage Protection
Land Use Policy (2015 Forthcoming)
State University of New York (SUNY) at Buffalo - Law School
Liberty at the Borders of Private Law
Akron Law Review, Forthcoming
Donald J. Smythe
California Western School of Law
Banks, Break-Ins, and Bad Actors in Mortgage Foreclosure
University of Cincinnati Law Review, Vol. 83, No. 4, 2015
Christopher K. Odinet
Southern University Law Center
Hola Preemption and the Original Intent of Congress: Are Federal Thrifts Necessary to Stabilize the Housing Market?
18 Fordham J. Corp. & Fin. L. 565
Stetson University College of Law
The Use of Tenant Screening Reports and Tenant Blacklisting
LEGALEase Pamphlet, New York State Bar Association (2015)
Gerald Lebovits and Jen M. Addonizio
Columbia University - Law School and Independent
113 Michigan Law Review 663 (2015), Northwestern Law & Econ Research Paper No. 15-11
Peter C. DiCola
Northwestern University School of Law
NEPA, FLPMA, and Impact Reduction: An Empirical Assessment of BLM Resource Management Planning in the Mountain West
University of Utah College of Law Research Paper No. 126
John Ruple and Mark Capone
University of Utah, S.J. Quinney College of Law and University of Utah - S.J. Quinney College of Law
Eminent Domain and the International Market: An Examination of Whether Midstream Companies Can Justifiably Show Public Use
Mark G. Wendaur IV
Widener University - School of Law
Land use law articles posted to SSRN in July by international scholars
Journal of South African Law, No. 2, pp. 326-341, 2011
Deakin University - Deakin Law School
The Delimitation between Airspace and Outer Space and the Emergence of Aerospace Objects
Journal of Air Law and Commerce, Vol. 78, 2013
Xi'an Jiaotong University School of Law
Legal and Administrative Remedies in Environmental Law in Nigeria: Reform Proposition
Afe Babalola University Ado-Ekiti Law Journal, 1(1), 320-352, 2013
Temitope Tunbi Onifade
About Legal Notions: Cession, Novation, Subrogation and Assignation
Dimitar P. Gelev
Ss. Cyril and Methodius University
The SCOPIC Clause as a Major Development in Salvage Law
University of Groningen, Students
Romanian Experience with FIDIC Forms in Road and Bridge Construction
The International Construction Law Review, Pt. 4, 2013
Lukas Klee and Claudia Adalgiza Teodorescu
Balázs & Holló Law Firm and Independent
Schutz wertvoller Stadtlandschaften durch das Zivilrecht? Bemerkungen zum Schutz individueller und kollektiver Rechtsgüter (Protecting Valuable Landscapes Through Private Law? Remarks on the Legal Status of Private and Collective Goods)
48 Kobe University Law Review 45 (2014)
Goethe University Frankfurt - Faculty of Law
Common Law Property Theory and Jurisprudence in Canada
Queen's Law Journal, Vol. 40, No. 2, p. 679, 2015, Osgoode Legal Studies Research Paper No. 28/2015
Sarah E. Hamill
York University - Osgoode Hall Law School
What Does Wukan Offer? Land-Taking, Law, and Dispute Resolution
Fu Hualing and John Gillespie (eds.) Resolving Land Disputes in East Asia: Exploring the Limit of Law (Cambridge University Press, 2014). , University of Hong Kong Faculty of Law Research Paper No. 2015/020
The University of Hong Kong - Faculty of Law
Friday, July 31, 2015
Northeastern Law School just announced a conference on the Urban Core as part of their Legal Scholarship 4.0 series. There is also a junior works-in-progress event associated with this conference (occurring on Halloween - spooky) but you better move quick because abstracts are due in two weeks with draft papers due by 9/9/15. See the website for details on the CFP and more.
From the Announcement:
Tackling the Urban Core Puzzle: October 29-31 in Boston
Even as American metropolises have begun to pull themselves out of the Great Recession, the neighborhoods at their centers often remain underdeveloped and impoverished. Entrenched sites of market failure and economic distress, such urban cores contribute significantly to the nation's worsening inequality gap. In our second annual Legal Scholarship 4.0 conference, Northeastern University School of Law invites you to join us in exploring and generating fresh research approaches with the potential to transform our cities.
By examining a range of contemporary models aimed at improving worker participation, financial services, property access, economic competition and business and personal asset growth, we will explore new connections between law and development in the urban core.
Wednesday, July 29, 2015
In the last couple of days I've run across some interesting mainstream journalism on fair housing issues - not something that normally gets a lot of play. But I thought this blog's readers would be interested.
The first is Brentin Mock's essay on CityLab "How Los Angeles County Furthered Racist 'Fair-Housing' Practices," about how two southern California jurisdictions colluded with the LA County Sherriff's office to push black families out of their communities through "intrusive and intimidating compliance checks," according to the Justice Deparment's findings. Mock is very critical of both the local governments' and the sherriff's conduct. He also refers to HUD's newly promulgated fair housing rules. . .
An issue also covered in a short Salon interview with Rutgers University's Paul Jargowsky, who calls the rules "long overdue" and yet also "only a start." Most interesting to me in Jargowsky's criticism of the lack of diversity in housing types in the suburbs:
I certainly think that to the extent that we’re spending public money on these units, they should be done in a way that advances access to opportunity and makes the most effective use of the public dollar. But the biggest story here, in the end, is really the private market and exclusionary zoning, and discrimination also in the private housing market. That’s the big one, and this won’t really change that. I’m certainly in favor of what HUD is doing now with this rule, and I think it will make some difference at the margin, but it’s not a big enough program overall to move the needle very much. . .
There has to be some overall constraint on pace of suburban growth, and the second thing would be that every suburban jurisdiction, every town and place that’s growing, has to include in its housing stock as it develops a full range of housing types that would accommodate roughly the distribution of income that exists within the metropolitan area. If you did that, within decades, new housing would accommodate a greater degree of racial and economic integration than it does now.
Yet another set of reminders, if we needed them, that providing safe, affordable housing remains a vexing issue in today's complicated world.
Jamie Baker Roskie
Tuesday, July 28, 2015
Spike Lee and the City of Chicago are in a battle over the purported title of his new movie about violence in the city. Lee reportedly is using the popular slang moniker of "Chi-raq" to refer to the city's most violent neighborhoods as his title. Several aldermen proposed stripping Lee of $3 million in film tax credits, but apparently the aldermen have had second thoughts. The Chicago Tribune has the story here (note: not linked to the Tribune's website because it is behind a paywall.) Also at 2015 WLNR 22244242.
A typical rather lengthy land use dispute in New Jersey highlights some of the issues that arise with exacted conservation easements.
Asbury Farms, a landowner in Washington Township, New Jersey, sought to develop a chunk (chunk being the technical term for 317 acres) of its land to develop some retail areas, a golf course, and other buildings. Not provided for in the Township's general plan, the township established a Planned Village District (PVD) comprised of Asbury's land to allow the project to proceed. The PVD rules and other laws required a variety of permitting approvals. Over the course of the development of this project, Asbury applied for both permits and permit extensions as did some of the individual businesses included in the project.
The interesting approval (well interesting to someone obsessed with fascinate by conservation easements) was a 10-year extension of a storm water management waiver. The Land Use Board approved the extension of the development permit/waiver in 2008 but conditioned on the Board and Asbury reaching an agreement within 6 months on a conservation easement protecting open space. The Board was worried about the loss of open space as the project was developing.
Monday, July 27, 2015
Here is an interesting case from Missouri:
In Rodgers v. Vilsack, (E.D. Missouri July 23, 2015), a participant in the federal Wetlands Reserve Program challenged the United States' decision to fine him for conservation easement violations.
The Wetlands Reserve Program, a Department of Agriculture program administered by the Natural Resources Conservation Services (NRCS) in conjunction with state and local agencies, pays landowners to encumber their land with conservation easements with the goal of protecting and enhancing wetlands. Rodgers owns land that was formerly strip mined 3500 of the 6200 acres). In 1998, he received $1,119,00 for a conservation easement held by the United States. Although not a WRP expert, it is my understanding that sometimes the NRCS tells the landowners what restoration projects to undertake and sometimes the NRCS (or related state/local agency) actually does the restoration itself.
I don't have a copy of the conservation easement itself, but we can glean some facts from the opinion. Rodgers claims that the NRCS restoration projects were faulty. He asserts that there were significant design flaws and in attempt to improve the habitat and wetlands on his land, he both created some dams and cut down some trees. NRCS fined him for both of these activities as being prohibited by the conservation easement. Rodgers, appearing pro se, also stated that NRCS gave him permission to undertake these activities.
The United States brought a motion to dismiss for lack of jurisdiction because the United States has not waived its sovereign immunity for actions of this type. So many interesting things to think about here.
Saturday, July 25, 2015
Just sending out my annual reminder to let your new colleagues know about the junior environmental law and land use prof listserv. It's for folks who are pre-tenure or even pre-teaching. It's a great forum for informal discussions of teaching, research, how to get a teaching job, etc. Just send me an email if you want to be included.
Friday, July 24, 2015
Gabe Metcalf, well respected in San Francisco land use circles and the head of SPUR (San Francisco Planning and Urban Research), has a nice piece in CityLab today about San Francisco's housing woes and their relation to progressive policies in that city. That said, I found the most compelling part of Metcalf's analysis one that was unexplored, and mentioned only in this passing passage:
Let me say very clearly here that making it possible to add large amounts of housing supply in San Francisco would never have been enough by itself. A comprehensive agenda for affordability requires additional investments in subsidies for affordable housing. Given the realities of economic inequality, there are large numbers of people who would never be able to afford market rate housing, even in a better-functioning market. [See SPUR’s complete set of ideas to make San Francisco more affordable.] In addition, while my focus here has been on San Francisco’s own housing politics, many smaller Bay Area cities and towns have been even worse actors. A regional solution, in which all cities do their part to accommodate regional population growth, would be far more effective than trying to solve our affordability problems inside the boundaries of a handful of cities. But San Francisco has been part of the problem too, when it could have been a very big part of the solution. Our suburban communities never claimed to be progressive, never wanted to be a refuge for people from all over the world seeking cultural tolerance or an opportunity for a better life.
In my opinion, this is the heart of the matter. San Francisco is a very small city jurisdictionally. An affordable housing policy that effectively addresses the Bay Area's housing woes must involve the surrounding suburbs. I made my analysis of the problems some months ago in a blog post I entitled, "Are San Francisco's land use rules the culprit for skyrocketing rents? [Hint: No.]."
I have recently updated the conference list for land use and environmental law conferences. Always a good source to see what types of academic meetings are underway. Feel free to send updates my way. I try to update it once a month (but it probably happens every other month if I am honest).
Thursday, July 23, 2015
San Francisco voters will decide the fate of short-term rentals (e.g., Airbnb, etc.) in the city with a coming ballot initiative this fall, which proposes to amend the city's existing regulations.
Here is the initiative and all of the relevant info from Share Better SF, which sponsored the petition.
Here is a summary from a San Francisco law firm:
This measure, sponsored by the housing activist group Share Better SF, seeks to restrict short-term rentals in San Francisco. The regulation of short-term rentals has been a contentious topic over the past few months. On July 14, 2015, rather than supporting Supervisor Campos’s ordinance to effectively restrict short-term rentals to 60 days per year, the Board of Supervisors voted to uphold existing law and restrict “unhosted” short-term rentals to 90 days per year and allow for unlimited “hosted” short-term rentals. “Hosted” rentals are where hosts stay in the units while guests are visiting. “Unhosted” rentals are where hosts are not present in the units while guests are visiting.
If approved, this measure will cap all short-term rentals at 75 nights per year, regardless of whether the rental unit is hosted or unhosted. Conditional use approval from the Planning Commission would be required to rent a unit on a short-term basis for more than 75 days per year. If granted, the unit would have to operate as a bed and breakfast establishment. Hosting platforms like AirBnB will be required to stop listing a unit for short-term rental if the unit has been rented on a short-term basis for 75 days per year. Hosting platforms will be subject to severe penalties of up to $1,000 per day for violating these rules. Further, homeowners will be prohibited from renting their in-law units on a short-term basis.
This initiative also expands the definition of “interested parties” who can sue to enforce the City’s law. Currently, only persons who live in the same building as a short-term rental unit are deemed “interested parties” with legal standing to sue violators of the law. If passed, this measure will expand the definition of “interested party” to any person who lives within 100 feet of a unit used for short-term rental, or any housing-related non-profit organization.
If passed, this measure would become operative on January 1, 2016.
FREE! Updates on case law and regulatory developments related to land use and 1st Am, climate change, affordable housing, and NEPA
It turns out that the Land Use Institute, which was to be held later this month in concurrence with the ABA meeting in Chicago, has been postponed. [Note: the sharing economy panels will still be going on, so I will still be in Chicago for the ABA conference if anyone wants to meet up or, you know, hear me give my two cents on the sharing economy.]
But with the other panels of the Land Use Institute postponed, that leaves me with about 50 pages of detailed memoranda I'd created as CLE handouts for my presentations at the event that will be too dated to use at a later time. What to do? I hate to see the information go to waste, so I thought I'd post the documents here--free!--for anyone who might find them of interest.
The first document provides case briefs on the "top 10" cases since July 1, 2014 in (1) land use law and the First Amendment; (2) land use law and climate change; and (3) affordable housing and inclusionary housing law. Here is the file:
The second document provides (1) an overview of federal law and policy related to climate change since July 1, 2014 and also (2) updates National Environmental Policy regulation and case law developments since July 1, 2014.
I hope these documents prove of use to some of you out there and, as always, I welcome comments, especially on what I might have missed! And don't be shy...I'd love a dialogue about any of this material either on the blog or by e-mail.
And come join us at the next Land Use Institute, which is now tentatively slated for ABA's next meeting in San Diego.
Georgia State University College of Law
85 Park Place
Atlanta, GA 30303
This summer marks the 10th anniversary of Hurricane Katrina, a catastrophic storm that reshaped the way cities across the United States and internationally talk about urban vulnerability and plan for resilience. Katrina’s Legacy conference will examine critical issues in the areas of community and economic development and educational reform.
- 8-8:45 a.m. Registration and light breakfast
- 8:45-9:15 a.m. Opening Remarks
- 9:15-10:45 a.m. Fostering Metropolitan Rebirth Through Catalytic Community and Economic Development
- Moderator: Dan Reuter, manager of Community Development, Atlanta Regional Commission
- Shawn Escoffery, director of Strong Local Economies Program, Surdna Foundation
- James Alexander, Housing and Economic Development manager, Atlanta Beltline Inc.
- Frank Fernandez, vice president of Community Development, the Arthur M. Blank Family Foundation
- 10:45-11 a.m. Break
- 11 a.m.-12:15 p.m. Building the Resilient City: Schools as Cornerstone
- Moderator: Courtney Anderson, assistant professor of law, Georgia State University College of Law
- Liza Cowan, vice president, JP Morgan Chase Foundation
- Delano Ford, executive director, Teach for America — Metro Atlanta
- 12:15-12:35 p.m. Lunch
- 12:35-1:05 p.m. Keynote Speaker
- Ambassador James A. Joseph, emeritus professor of the practice of public policy at the Sanford School of Public Policy at Duke University, former U.S. ambassador to South Africa, and chair of the Louisiana Disaster Recovery Foundation following Hurricane Katrina.
- 1:05-1:30 p.m. Question and Answer Session
- 3 hours of Georgia CLE credit have been applied for and would cost an additional $15.
Monday, July 20, 2015
The Chicago Tribune's (sub. reqd.) op-ed today is on TIF in the Windy City:
Next City has the story...
In May, the Arcata City Council approved, on a 5-0 vote, the creation of a “Medical Marijuana Innovation Zone.” City officials believe it may be the country’s first-ever land use designation specifically meant to promote and regulate the production of marijuana and cannabis-related products.
The city has identified several parcels in an industrial area on the edge of town, where an abandoned lumber processing facility may soon provide a city-sanctioned home for marijuana producers. The logic behind the zone hearkens back to the very origin of U.S. zoning when noxious industries were first segregated from residential areas.
In Arcata’s case, the nuisance isn’t from toxic smoke or noise but rather the sickly pungent aroma of some of the world’s most potent bud.
Thursday, July 16, 2015
July 30: 31st Annual Land Use Institute: Planning, Regulation, Litigation, Eminent Domain, and Compensation
The 31st Annual Land Use Institute will be held concurrently with the ABA's national convention in Chicago on July 30. I'll be there and speaking on a couple topics. I've attached a pdf of the brochure. Hope to see some of you there!